Qualifying-Child Status for Non–LPR Cancellation Is Measured at Adjudication, Not Filing

Commentary on Yupangui‑Yunga v. Bondi, No. 23‑6522 (2d Cir. Oct. 24, 2025)

Introduction

In this precedential decision, the Second Circuit resolves a recurring timing question under 8 U.S.C. § 1229b(b)(1)(D), the non–LPR cancellation of removal statute: when must a “child” be under 21 for purposes of establishing “exceptional and extremely unusual hardship” to a qualifying relative? The court holds that “child” status is measured at the time the application for cancellation is adjudicated, not at filing, at the merits hearing, or at the time new evidence is submitted.

The petitioner, Julio Cesar Yupangui‑Yunga, a citizen of Ecuador, sought cancellation of removal based on hardship to his three U.S.-citizen children. An immigration judge denied relief, and the BIA affirmed. He later moved to reopen, proffering a psychological evaluation of his eldest daughter. While the motion was pending, she turned 21. The BIA denied reopening, concluding she had aged out and thus was no longer a qualifying “child.” The Second Circuit upholds that determination and rejects arguments rooted in agency delay and post–Chevron interpretive flexibility after Loper Bright.

The opinion also squarely addresses issue-exhaustion, holding that a noncitizen need not exhaust an argument that the BIA introduced sua sponte in its decision, clarifying how Santos‑Zacaria’s approach to exhaustion applies in motions-to-reopen practice.

Summary of the Opinion

• The Second Circuit has jurisdiction to review the BIA’s denial of a motion to reopen and may decide questions of law de novo under 8 U.S.C. § 1252(a)(2)(D).
• Exhaustion: The petitioner was not required to anticipate or preemptively exhaust the “aging out” issue before the BIA because the BIA raised it for the first time in denying reopening. Reconsideration was not a prerequisite to judicial review.
• Merits: Under § 1229b(b)(1)(D), a qualifying “child” must be under 21 at the time the cancellation application is adjudicated. A cancellation application is a “continuing application.” If a child turns 21 before the agency decides cancellation, she ceases to be a qualifying relative for hardship purposes.
• Post–Loper Bright: Although Chevron deference no longer applies, the court—using independent judgment—adopts the BIA’s interpretation as the best reading of the statutory text.
• Delay-based arguments: The statute cannot be “interpreted” differently to offset adjudicative delay; there is no equitable exception to the age requirement.
• Disposition: Petition for review denied.

Analysis

Precedents and Authorities Cited and Their Influence

• Mata v. Lynch, 576 U.S. 143 (2015) — Confirms circuit court jurisdiction to review denials of motions to reopen; frames the court’s threshold jurisdictional analysis.
• 8 U.S.C. § 1252(a)(2)(B)(i) and (a)(2)(D) — The cancellation denial is ordinarily unreviewable as discretionary, but legal questions remain reviewable. The “aging out” question is a pure question of law subject to de novo review.
• Santos‑Zacaria v. Garland, 598 U.S. 411 (2023) — Issue-exhaustion is nonjurisdictional and, critically here, the Court discourages requiring a petitioner to file a motion to reconsider when the BIA itself introduced the issue. This case grounds the Second Circuit’s refusal to demand anticipatory exhaustion of an issue the BIA raised sua sponte.
• Ud Din v. Garland, 72 F.4th 411 (2d Cir. 2023) — Reinforces that exhaustion is generally mandatory when raised by the Government, but is tempered by Santos‑Zacaria’s carve-out.
• Garcia Pinach v. Bondi, 147 F.4th 117 (2d Cir. 2025); Naizhu Jiang v. Garland, 18 F.4th 730 (2d Cir. 2021) — Support de novo review of legal questions arising in motions to reopen.
• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) — Overrules Chevron deference. The Second Circuit emphasizes its “independent judgment” in construing § 1229b(b)(1)(D) and still reaches the same bottom-line interpretation previously embraced by the BIA.
• Wisconsin Central Ltd. v. United States, 585 U.S. 274 (2018); Nielsen v. Preap, 586 U.S. 392 (2019) — Textual canons and grammar: the court leans on ordinary meaning and verb tense (e.g., “would result” and “is”) to anchor the timing rule.
• Matter of Isidro‑Zamorano, 25 I. & N. Dec. 829 (B.I.A. 2012) — The BIA’s “continuing application” approach: a child who turns 21 before adjudication is no longer a qualifying “child.” The Second Circuit adopts this approach on its own reasoning post–Loper Bright.
• Matter of Ortega‑Cabrera, 23 I. & N. Dec. 793 (B.I.A. 2005) — Illustrates how the “continuing application” principle affects the good-moral-character window, counted backward from decision, sometimes aiding applicants as time passes.
• Diaz‑Arellano v. U.S. Att’y Gen., 120 F.4th 722 (11th Cir. 2024) and Rangel‑Fuentes v. Bondi, No. 23‑9511, 2025 WL 2750691 (10th Cir. Sept. 29, 2025) — Sister-circuit decisions (including post–Loper Bright) align on adjudication-time measurement of child status; the Second Circuit explicitly agrees.
• Mendez‑Garcia v. Lynch, 840 F.3d 655 (9th Cir. 2016) — The Ninth Circuit reached a similar result earlier (under Chevron); the Second Circuit notes this for completeness.
• INS v. Cardoza‑Fonseca, 480 U.S. 421 (1987) and Martinez‑Perez v. Barr, 947 F.3d 1273 (10th Cir. 2020) — Discussed to reject the notion that the BIA may vacillate among different interpretations case-by-case; post–Loper Bright, the Second Circuit underscores that statutory meaning is fixed and not equitable.

Legal Reasoning

The court’s reasoning turns on textual analysis and statutory context, not agency deference. Two textual features carry the day:

• “Would result” (conditional mood) in § 1229b(b)(1)(D) frames the hardship as a forward-looking consequence of removal. Thus, the analysis focuses on the effect at the time of removal, which necessarily post-dates adjudication. If the hardship must flow from removal, the relevant facts must be assessed with respect to that future event.
• “Is” (present tense) in the phrase “spouse, parent, or child, who is a citizen or [LPR]” requires contemporaneous possession of qualifying status when hardship is assessed. For a “child,” the definitional cross-reference, 8 U.S.C. § 1101(b)(1), requires being an “unmarried person under twenty-one years of age.”

Reading these verbs together, the court reasons that the hardship inquiry must consider whether removal would cause the requisite hardship to someone who is, at the time of the decision predicting that removal, a qualifying relative. Because removal necessarily follows adjudication, if the putative “child” has already turned 21 by the time of adjudication, she will also not be a “child” at the time of removal. Hence, child status must exist at adjudication. This dovetails with the BIA’s longstanding conception of cancellation as a “continuing application,” under which eligibility predicates are measured as of decision.

The court further emphasizes symmetry: adjudication-time measurement “cuts both ways.” New qualifying relatives may arise during proceedings (births, marriages), and past disqualifying conduct may attenuate in the good-moral-character window counted back from the decision date. Conversely, some relationships may cease to qualify (children age out; spouses divorce; qualifying relatives die), undermining eligibility. The statute contains no textual basis for freezing eligibility at filing or hearing to lock in a historical snapshot.

On the delay argument, the court is explicit: the statute means what it means irrespective of agency processing time. There is no authority for the BIA (or the court) to craft equitable exceptions to statutory age limits or to apply different interpretive baselines to mitigate delay. Notably, the BIA’s stray reference to the wrong definitional subsection for “child” was harmless because both § 1101(b)(1) and § 1101(c)(1) impose the same “under 21” age limit, and § 1101(b)(1) governs here in any event.

Impact and Implications

This decision has significant practical and doctrinal consequences in immigration adjudication within the Second Circuit and contributes to emerging inter-circuit consensus.

• Settled timing rule in the Second Circuit. Practitioners must now assume that a child must be under 21 on the date the IJ or BIA adjudicates cancellation. Evidence and briefing should not rely principally on a child nearing 21 unless adjudication will occur before the birthday.
• Alignment with other circuits. The ruling aligns the Second Circuit with the Eleventh and Tenth Circuits post–Loper Bright, promoting national uniformity in the absence of a statutory age-out protection for cancellation akin to the Child Status Protection Act, which does not apply to § 1229b(b)(1)(D).
• Continuing-application doctrine reaffirmed post–Chevron. Even without Chevron deference, courts may adopt agency constructions when they reflect the best reading of the text. The “continuing application” framework remains robust for cancellation eligibility, not just for qualifying relative status but also for the good-moral-character period.
• Strategic case management. Counsel should:
  • Seek expedited scheduling when a qualifying child approaches 21.
  • Develop hardship evidence for multiple qualifying relatives (younger children, spouses, parents) to avoid a single point of failure if one child ages out.
  • Consider that births and marriages during proceedings may strengthen eligibility; conversely, divorces and deaths can defeat it.
• Limited recourse for delay-based prejudice. The court underscores that delay does not alter statutory meaning. While the opinion does not address potential independent remedies (e.g., mandamus for unreasonable delay), it squarely rejects using interpretive “fixes” to offset delay in the eligibility calculus.
• Exhaustion clarified for BIA-sua sponte issues. Under Santos‑Zacaria, petitioners need not file a motion to reconsider to preserve an issue the BIA itself introduced in its decision. This streamlines access to circuit review and avoids “worthless” procedural detours.
• Scope of reopening narrowed when aging out occurs. New evidence must be material and likely to change the outcome. If a child ages out while a motion is pending, hardship evidence solely about that now-adult child cannot carry the reopening burden.

Complex Concepts Simplified

• Non–LPR Cancellation of Removal (§ 1229b(b)(1)). Discretionary relief available to some noncitizens who (A) have 10 years’ continuous physical presence, (B) possess good moral character during that period, (C) lack specified disqualifying convictions, and (D) can show “exceptional and extremely unusual hardship” to a qualifying U.S.-citizen or LPR spouse, parent, or child.
• “Exceptional and extremely unusual hardship.” A demanding standard. It requires hardship substantially beyond what ordinarily accompanies removal; mere economic detriment or emotional distress is usually insufficient without additional compelling factors.
• Qualifying “child.” For this statute, “child” means an unmarried person under 21. Once the person turns 21, they are no longer a “child” for § 1229b(b)(1)(D).
• “Continuing application.” The idea that eligibility elements are assessed as of the time of decision (adjudication), not frozen at filing. Facts can change during the pendency: some changes help (births, marriages; passage of time for good moral character), others hurt (aging out, divorce, death).
• Aging out. When a person relying on “child” status turns 21 before the application is decided, they cease to be a qualifying relative for cancellation hardship purposes.
• Motion to reopen. A statutory vehicle to present new, previously unavailable, material evidence that would likely change the result. It is disfavored and strictly policed; if the new evidence relates to a non-qualifying relative (e.g., a child who has aged out), it cannot justify reopening.
• Issue exhaustion. Generally, arguments must be presented to the agency before being raised in court. But if the BIA introduces an issue for the first time in its own decision, Santos‑Zacaria teaches that a petitioner need not seek reconsideration before obtaining judicial review of that issue.
• Loper Bright and the end of Chevron deference. Courts no longer defer to reasonable agency interpretations of ambiguous statutes as a default rule. Instead, courts exercise independent judgment. Here, that independent reading matched the BIA’s view because the text—especially verb tense and conditional structure—pointed to adjudication-time measurement.

Case Background and Procedural Posture (Context)

The petitioner entered the United States without inspection in 1997 and later incurred multiple convictions (including DUI and related offenses), which weighed against good moral character. He applied for cancellation in 2013, testifying about financial and emotional support for his three U.S.-citizen children. The IJ denied relief in 2018, finding (i) lack of good moral character and (ii) failure to prove “exceptional and extremely unusual hardship,” and also declined to grant relief as a matter of discretion. The BIA affirmed on hardship alone in 2021.

In 2021, the petitioner moved to reopen with new psychological evidence concerning his eldest daughter, then nearly 20. In 2023, the BIA denied reopening, concluding that she had aged out while the motion was pending and that the new evidence would not change the result. The petitioner sought review only on the aging-out question; he did not challenge the hardship findings as to the younger children.

Why This Decision Matters

• It announces a clear, administrable rule for the Second Circuit: qualifying-child status in non–LPR cancellation is determined at adjudication.
• It confirms that courts, after Loper Bright, may embrace agency interpretations that best fit the statutory text, without invoking deference.
• It clarifies exhaustion doctrine in the common scenario where the BIA injects a new legal issue into a denial of reopening.
• It signals to practitioners the importance of case pacing and the risks attendant to reliance on a single child near age 21.

Conclusion

Yupangui‑Yunga v. Bondi establishes an important timing principle for non–LPR cancellation: a “child” must be under 21 at the time cancellation is adjudicated. The court’s textual analysis—anchored in the conditional “would result” and present-tense “is,” together with the statutory definition in § 1101(b)(1)—compels a forward-looking hardship assessment keyed to adjudication and the contemplated removal. The decision aligns the Second Circuit with other circuits and preserves the BIA’s “continuing application” framework as a matter of independent judicial interpretation post–Loper Bright.

On procedure, the court also provides a practical and equitable rule for exhaustion: a petitioner need not foresee and brief issues the BIA raises sua sponte; Santos‑Zacaria precludes requiring a “worthless” motion to reconsider as a precondition to judicial review.

The key takeaways: (1) no equitable exceptions soften the age requirement in § 1229b(b)(1)(D); (2) adjudication timing will sometimes benefit, sometimes harm, applicants; and (3) counsel should plan for age dynamics, diversify qualifying-relative theories, and consider case-management strategies where a child nears 21. In the broader legal landscape, this opinion exemplifies post–Chevron statutory interpretation: careful textual analysis leading to a stable, uniform rule that will guide immigration courts and practitioners alike.